Supreme Court Considers Revisions to Child Protection From Porn Rulings

WASHINGTON — The Supreme Court appeared cautiously ready Wednesday to revise its rulings on how to prevent children from gaining access to online pornography.

The justices were told by attorneys advocating for a Texas anti-pornography law that new technology can prevent underage internet users from viewing pornography.

The law, H.B. 1181, passed by the Texas Legislature in 2023, requires websites with at least one-third of their content consisting of explicit sexual material to verify the ages of their visitors. Violators could be fined between $10,000 and $250,000, depending on whether minors could be harmed.

Internet platforms argued that age-verification systems are impractical and easily circumvented. They also said the systems could subject internet users to privacy violations, possibly allowing hackers to steal information that allows them to break into other people’s financial accounts.

“You’re creating a permanent record on the internet when you provide this information,” said Derek L. Shaffer, an attorney who represented the Free Speech Coalition, an adult-entertainment industry trade group.

The Texas law is similar to others approved or pending in states nationwide.

The Supreme Court previously has confronted issues of juveniles’ access to internet pornography but was less receptive to state restrictions than during the hearing Wednesday.

In 1996, the court struck down a law that banned explicit online material that could potentially be viewed by children. The court described the law as an overly broad intrusion into First Amendment free speech.

In 2004, the court ruled against a different federal law by saying content filtering for children could be acceptable but not if it filters all explicit material.

Texas attorneys said new technology makes content filtering specifically for children more practical.

Artificial intelligence is available now that takes pictures of internet site users and then quickly determines their ages based on their facial features.

Other verification systems use either a digital ID, commercial verification systems or transactional data to verify a user’s age. 

The Texas attorneys said Supreme Court precedent already has supported age-verification since the 1960s by upholding laws that require photo ID at bars and some retail stores.

The New Orleans, Louisiana-based Fifth Circuit Court of Appeals upheld the new Texas law, prompting the Free Speech Coalition to appeal to the Supreme Court.

Texas Solicitor General Aaron L. Nielson said the freedom of online platforms to choose how they verify a user’s age, along with the public good of blocking children from pornography, contributes to giving the law a “rational basis” that the Supreme Court should endorse.

The Supreme Court justices agreed online pornography was a growing problem but expressed reservations about new technologies for blocking it without trampling privacy or free speech rights.

“Technological access to pornography has exploded, right?” asked Chief Justice John Roberts.

The Free Speech Coalition agreed children should not see pornography but argued state laws like in Texas are so broad that they could block sexual education content and simulated sex scenes in movies.

They also said the state laws have loopholes by focusing on porn sites but not search engines that still could give access to explicit sexual content. 

Justice Samuel A. Alito responded to the Texas assurances about the effectiveness of online age-verification by saying, “Come on, be real. There’s a huge volume of evidence that filtering doesn’t work. We’ve had many years of experience with it.”

Other states with similar laws are Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Tennessee, Utah and Virginia.

A Supreme Court ruling in the case is expected in June.

The case is Free Speech Coalition et al. v. Ken Paxton before the U.S. Supreme Court.

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